Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
absent the immunization, liability will only exist where a municipality is found negligent, though
municipalities will sometimes face litigation costs whether they are found negligent or not.
Interestingly, Dubuque’s restrictions have “spark[ed] . . . backlash” among residents.
Dubuque Officials Consider Opening More Parks to Sledding, S.F. GATE (Jan. 17, 2015). In the
wake of protests, Dubuque’s City Council amended its ordinance and opened more of the city’s
parks for sledding. See City of Dubuque, Iowa—City Council Proceedings Regular Session, CITY
OF DUBUQUE 5 (Jan. 20, 2015), https://perma.cc/N564-DYBE.
5. Government Officer Immunity
a. Federal Officials
In the 19th century, federal officials who committed common law torts while serving their
duties received no protection from the judiciary. The existence of a superior’s orders or an
officer’s good faith belief in the legality of his actions provided no shield from personal liability.
See Orval Edwin Jones, Tort Immunity of Federal Executive Officials: The Mutable Scope of
Absolute Immunity, 37 OKLA. L. REV. 285 (1984). The earliest federal case demonstrating this
principle is Little v. Barreme, which arose from the seizure of a foreign vessel sailing from France
by Naval captain George Little. 6 U.S. (2 Cranch) 170 (1804). Little had acted in compliance
with a Presidential order authorizing the capture of any ship suspected of trading with the French
during the Quasi-War. However, the Congressional act that the order sought to execute only
authorized the seizure of ships sailing to any French port. The Court held that the President’s
order did not “legalize an act which without those instructions would have been a plain trespass”
and that Little was thus liable for damages. Id. at 179.
The judiciary’s early refusal to shield federal officials from liability did not necessarily
leave such employees exposed to judgments. Instead, they were able to seek indemnification by
petitioning Congress to pass private bills of reimbursement. Congress would often grant such
requests, particularly when they stemmed from acts made in good faith fulfillment of their duties
and without malicious intent. Indeed, roughly 60% of military officers who sought
indemnification in the antebellum era were successful in receiving Congressional relief—
including Captain Little himself. See James E. Pfander & Jonathan L. Hunt, Public Wrongs and
Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U.
L. REV. 1862, 1905 (2010). This case-by-case system of indemnification didn’t undo ex post
review. Instead, it gave both the courts and Congress shared responsibility in determining the
propriety of an officer’s acts.
The doctrine of immunity for common law torts committed in an official’s course of duty
developed slowly, beginning in the latter part of the century. See Theodore P. Stein, Nixon v.
Fitzgerald: Presidential Immunity as a Constitutional Imperative, 32 CATH. U. L. REV. 759-85
(1983). The Supreme Court first laid out the reasoning for officials’ immunity in the case of
Bradley v. Fisher, holding that a federal judge accused of maliciously ordering a lawyer’s
disbarment was absolutely immune from civil liability. 80 U.S. 335 (1871). The Court reasoned
that personal liability would “destroy that independence without which no judiciary can be either
respectable or useful.” Id. at 347. Twenty-five years later, the Court expanded immunity to
federal officials in the President’s cabinet in Spalding v. Vilas, echoing Bradley by stating cabinet
officer liability for acts done in the scope of their duties would “seriously cripple the proper . . .
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